PHILOMINA KATHINI KIMAI VS DAVID NZOKA MUSYOKA

1.This appeal is from the judgment in Kitui Chief Magistrate’s Court ELC No. 18 of 2018 by Hon. S. Mbungi (Chief Magistrate) delivered on 18th November 2022. The Appellant filed a Memorandum of Appeal dated 12th October 2023 setting out the following grounds:
1.That the Learned Trial Magistrate erred in law and in fact when he arrived at a decision against the law and facts and made an order to evict the Appellant from the suit land.
2.That the Learned Trial Magistrate erred in law and in fact when he found out that the Plaintiff was the legal owner of Land Parcel Kyangwithya/Tungutu/140 without calling for a production of a certified copy of the alleged title deed produced.
3.That the Learned Trial Magistrate erred in law and in fact when he showed open bias against the Appellant by failing to take into account and to consider her quiet possession, interests and rights in the suit property as a beneficial owner for over 50 years(her matrimonial home).
4. That the Learned Trial Magistrate erred in law and in fact by misdirecting himself and based his findings on assumptions and wrong considerations by making an order for the demolition of the Appellant\'s matrimonial home.
5.That the Learned Trial Magistrate failed to consider all relevant issues raised in the Appellant’s defence before closing her case prematurely.
6.That the Learned Trial Magistrate erred in both law and in fact by failing to accord the Appellant the right to a fair trial and proceeded to issue judgment ex-parte.
7.In the circumstances of the matter, the findings of the learned trial magistrate are unsupported by the evidence adduced or by the law.

2.The Appellant seeks orders the appeal be allowed, the judgment dated 18th November 2022 be set aside and an order directing a fresh trial be issued. The Appellant further seeks an injunction against the Respondent from unlawfully interfering with the suit property and an order of cancellation and/or revocation of the title Kyangwithya/Tungutu/140 allegedly issued to the Respondent herein.

3.The Appellant also seeks a declaration recognizing the Appellant as the beneficial and lawful owner of the suit property, damages and costs of the Appeal.

4.The suit before the Trial Court was instituted through the plaint dated 23rd April 2018. The Plaintiff before the trial court is the Respondent in this appeal. The Plaintiff claimed to be the registered proprietor of land parcel Kyangwithya/Tungutu/140 whose title deed he holds.

5.He averred that the defendant wrongfully, unlawfully and illegally entered into his land and established houses thereon, which occupation is inconsistent with the Plaintiff\'s interests. Despite demand and warning by the local administration to cease using the plaintiff’s land and to vacate, the defendant refused to do so.

6.The Plaintiff prayed for a declaration of the right to demolish the houses established on the suit land, and an order for eviction against the defendant from the suit land with costs of the suit.

The Defendant’s Statement of Defence

7.The Defendant denied the averments in the plaint and put the plaintiff to strict proof thereof. She further denied having been served with a demand notice and only admitted the jurisdiction of the Court.

The Hearing of the Suit

8.The Plaintiff, David Nzoka Musyoka testified as PW 1 and adopted his witness statement as evidence in chief. He testified that he was given the suit land by his late father Jonah Musyoka Nzoka as a gift in 1974. The land was transferred to him and he holds a title deed.

9.The Plaintiff accused the Defendant who is his sister-in-law of trespassing, entering into his land, building houses, planting trees and claiming ownership. He claims that the dispute was heard by the local administration and their clan and a decision was made on 6th October 2018 that the Defendant vacates the land within three months.

10. Further, the Plaintiff accused the defendant of using the suit property in a way that has damaged, wasted, destroyed, polluted and/or degraded the suit property which has deprived him of the use and enjoyment of his legally owned property.

11.PW 2 Robert Maithya adopted his witness statement stating that he shared a clan, the Mbuli-Akitondo clan with the Plaintiff in which he is the vice-chairperson. He testified that on 06/07/2018, the Plaintiff called a clan meeting involving a case between himself and the defendant. He stated that their deceased father sub-divided and allocated his properties and that it became clear during the meeting that the suit property had been transferred to the Plaintiff who produced a title deed. He testified that the defendant did not produce any evidence to show she was entitled to the suit property. The clan advised the Plaintiff to come to Court and seek an eviction order against the defendant.

12.PW 3 Samwel Kilonzo Musyoka, is the Plaintiff’s brother. He adopted his witness statement as his evidence in chief and stated that his late brother was married to the defendant herein and was allocated several portions of land by their father. He stated that the Defendant has possession and control of the portions of land.

13.He further testified that the suit land was allocated and transferred to the Plaintiff, to direct the defendant herein to vacate the suit property to her other allocated portions while he was still alive, the defendant refused and/or neglected to do so. She also resisted the local administration\'s attempts at vacating her from the suit property and has remained adamant in her continued trespass on the suit property.

14.PW 4 William Mwendwa had recorded a witness statement but passed on before the hearing date. The statement was produced by the Plaintiff under Section 33 of the Evidence Act. In the statement, he stated that the Plaintiff’s deceased father was his uncle and that he is a neighbour. His late uncle together with his father subdivided and shared their land to their children in the 1970s and confirmed that the defendant\'s late husband was allocated several portions of land by his late uncle. He testified that as the clan, they had talked to the defendant and gave her an ultimatum to vacate the suit property by 06/10/2018.

15. The defendant who had appeared in person during the hearing was granted leave and time to file a witness statement and seek Legal Counsel to represent her as she was illiterate. On the date for the defence hearing, the Court noted from the record that there was a statement of defence and witness statements but closed her case since she had been given the last adjournment previously.

16. Judgment was delivered by the Trial Court on 18th November 2022 where it was found that a certificate of registration of land means the registered person is the absolute proprietor of the property. The trial court found that it was incumbent upon the defendant to show the Court that the Plaintiff was wrongly registered as the proprietor of the land.

17. The trial court noted that the defendant did not file a counterclaim to claim ownership of the suit land and neither did she particularize acts of fraud in the statement of defence. The court also found that the Defendant did not adduce evidence to prove that the plaintiff got the registration through fraud.

18. Further, the trial court noted that the defendant never testified and failure by the defendant to testify and/or call any witnesses makes her statements mere allegations since they were unsubstantiated. Finding that the Plaintiff’s case was not controverted, the trial court entered judgment in favour of the plaintiff and ordered that each party bear the costs of the suit.

The Appellant’s submissions

19. Counsel for the Appellant submitted that the Appellant filed a defence maintaining that she is the owner of the suit property as she lived on it and knew it as her matrimonial home for more than 30 years after marriage to the Respondent\'s brother.

20.Counsel submitted that while the title does indeed give absolute proprietary rights to the registered owner, the title was subject to challenge and the same was challenged through the defence and witness statements filed by the Appellant. He submitted that the evidence filed ought to have been heard on merit but the opportunity was not afforded to the Appellant.

21.Counsel challenged the validity of the title issued to the Respondent questioning how the Respondent obtained title to the suit land, given that the land belonged to his father’s estate without obtaining a grant of letters of administration or presenting any transfer documents signed by his late father. Counsel also challenged the reason the Respondent claims ownership over his late elder brother’s matrimonial home.

22.Further, Counsel submitted that the trial court erred in law by admitting and/or accepting an uncertified copy of the title presented by the Respondent without calling for its authentication as demanded by law and procedure.

23.The jurisdiction of the trial Court was also denied by Counsel who submits that the suit property belonged to the Respondent’s deceased brother who is the Appellant’s husband, it is matrimonial property and arises out of an estate which has never been administered.

24.Their submission is that a title created in contravention of the law is invalid, null and void as was held in the case of Dina Management Limited v. County Government of Mombasa & 5 others(2023) KESC 30(KLR).

25. Counsel submitted that the Appellant was not given a fair trial and was locked out from being heard, despite filing a defence and witness statement and the court rushed to close the defence case while she was present in Court.

26.On 15/9/2022 when the matter came up for confirmation of filing of submissions, the defendant was absent as indicated in the record but Counsel contends that the trial court did not call for proof of service of the mention notice for the purpose of taking a new judgment date.

27.The Appellant’s submission is that her defence raised issues of facts and law, which ought to have been ventilated but was locked out of the hearing contrary to the provisions of Article 50 of the Constitution and cited the authority of Mbogholi Msagha v. Chief Justice & 7 others Nairobi HCMCA No.1062 of 2004 and prayed that the Appeal be allowed as prayed.

28.On 16th May 2024, the court gave directions on filing of written submissions by Counsel for the parties. The Respondent did not file written submissions as directed.

Analysis and Determination

29.As a first appellate court, this court must approach the whole of the evidence on record from a fresh perspective and with an open mind and to evaluate and re-examine the evidence adduced, taking into account the fact that this court had no opportunity of hearing or seeing the parties as they testified.

30.The role of an appellate court was articulated in the case of Gitobu Imanyara & 2 others v Attorney General [2016] e KLR, where the Court of Appeal stated that;
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”
31.Having considered the grounds of appeal, record of appeal and the submissions in this appeal, the court is of the view that the grounds of appeal may be summarized and dealt with under the following issues arising for determination:
1)Grounds 1,2,3,4, and 7: Whether the learned Magistrate failed to properly consider the evidence adduced in deciding on the rights to ownership and possession of the suit land.
2)Grounds 5 and 6: Whether the Appellant was accorded the right to a fair trial before the court closed her case.
32.The court proposes to deal with the 2nd issue first since in the Court’s view the determination on the said issue affects the final determination on the first issue.

Whether the Appellant was accorded the right to a fair trial       before the court closed her case.

33.The proceedings of the trial court show that this suit was filed on 10th May 2018 together with witness statements and a list of documents. The Defendant entered an appearance and filed a defence on 30th May 2018. The Plaintiff filed a further list of witnesses and witness statements and a supplementary list of documents all filed in court on 9th July 2020 and a further supplementary list of documents filed on 7th April 2022.

34.The trial commenced on 4th February 2021 with the Plaintiff and his witnesses testifying and the Plaintiff\'s case was closed on 2nd December 2021. At that point, Counsel for the Respondent indicated to the court that the Appellant had never entered an appearance or filed a statement of defence.

35. In the interests of justice, the court gave the Appellant 14 days within which to file and serve documents and witness statements. The matter was set for mention on 10th February 2022. On the mention date, it was noted that the Appellant had not filed any documents as directed. The matter was then set for another mention on 24th March 20022 as the court advised her to seek legal representation. On the said mention date the Defendant filed her witness statement and that of a witness named Joseph Musyoki Kimai.  The Plaintiff’s Counsel applied and was granted leave to recall his witness and the matter was set down for hearing on 9th June 2022.

36.On the said hearing date the court recorded the Plaintiff as being absent while the Defendant was present. Counsel for the Plaintiff informed the court that the matter was for hearing of the defendant\'s case but she had not put in any defence thus the suit was undefended. He went on to state that the defendant had been given a last adjournment. He sought to be given a judgment date. The court noted that the defendant had filed a statement of defence and witness statements and also gave a judgment date of 8th September 2022. At the same time, the court closed the defendant\'s case with liberty to the Plaintiff to file submissions. The trial court noted that the defendant was absent yet she knew of the day hearing date.

37.The Appellant complains that her case was closed prematurely when the court heard the plaintiff\'s case ex parte. Counsel for the Appellant stated that when the matter was for mention on 7th April 2022, the Appellant was marked by the court record as being absent though it is noted from the record that she was indeed present since she addressed the court and confirmed that she was okay with the Plaintiff’s witness being recalled. She also confirmed that she was unwell.

38.The Appellant complained that on 9th June 2022, the matter was coming up for hearing of the Respondent\'s witness who was to be recalled and not as was stated by Counsel for the Respondent that it was for a defence hearing. Counsel further stated that on the said date the absent person was the Respondent.

39.After careful perusal of the trial court record, the court notes discrepancies concerning what was recorded by the trial Court on attendance by the parties on 7th April 2022, 9th June 2022 and 15th September 2022. On 7th April 2022, the Defendant is recorded by the trial court as being absent yet she is also recorded as having addressed the court informing that she was unwell. On 9th June 2022, the Appellant was recorded as being present yet the Counsel for the Respondent is recorded as submitting as though she was absent. Further, the court recorded that the Appellant was absent yet she knew of the day’s hearing date. This means that on the date of the hearing on 9th June 2022, the trial court recorded the Appellant as being both present and absent at the same time.

40.Further, concerning the 15th September 2022, it is not clear whether the Appellant was served with a Mention Notice for filing of submissions which she was entitled to file even if she had not offered a defence to the suit.

41.In the above circumstances, it is not clear to the court if on 9th June 2022, the Appellant was present in court at some point and was recorded as such and stepped out or that the Court recorded that she was present erroneously but was absent. It is also noted that as complained by the Appellant the 9th June 2022 was set for recalling the Respondent\'s witness and the said Respondent is marked as having been absent. Counsel for the Respondent and the trial court did not address themselves on the order that was made at Counsel\'s request to recall a witness for further hearing on the material date.
42.Taking all the above into account it is difficult to conclusively state from the court record which party was present on the days mentioned above and especially on 9th June 2022 when the Appellant was expected to prosecute her defence after the recall of the Respondent.

43.The right to a fair hearing is embedded and enshrined in the law and the rules of natural justice. If the Appellant was present in Court on the material date when the matter was to be heard and was denied a chance to be heard, that would have been an injustice to her.

44.Article 50(1) of the Constitution provides that:
“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

45.In the Court\'s view, the Appellant should have been given a chance to defend her case, given that she had filed a defence and pre-trial documents and that she was a layperson representing herself. Having also claimed ownership of the suit land in her pleadings, the Appellant ought to have had an opportunity to challenge the Respondent’s title.

46.Section 26 of the Land Registration Act No. 3 of 2012 provides that a Certificate of title is to be held as prima facie evidence of absolute and indefeasible proprietorship. It states that:
“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or
b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

47. The Learned Judges of the Court of Appeal in the case of Standard
Chartered Financial Services Limited & 2 others v Manchester
Outfitters (Suiting Division) Limited (Now Known As King Woollen
Mills Limited & 2 others [2016] eKLR expressed that:
“Indeed the right to fair trial is not just a fundamental right. It is one of  the inalienable rights enshrined in Article 10 of the Universal Declaration of Human rights (UDHR), and Article 6 of the International Convention on Civil and Political Rights (ICCPR) among other International conventions, which this country has ratified. Article 25(c) of the Constitution 2010 elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the rule of Law and public faith in the justice system would inevitably collapse.”

48.Similarly, the Supreme Court Judges in the case of Kidero & 4 others v Waititu & 4 others (Petition 18 & 20 of 2014 (Consolidated)) [2014] KESC 11 (KLR) (29 August 2014) (Judgment) held that:
“The right to a fair hearing as guaranteed by the Constitution is so     vital that the Constitution itself expresses it as a non-derogable right.     I am persuaded that the weight attached to this right by the     Constitution itself warrants the exercise by this Court of its inherent     powers and conduct a limited evidentiary hearing in which a witness     who was not cross-examined will be cross-examined before this     Court.”

49. On the challenge to the Respondent’s title to the suit land, the Court of Appeal in the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR  stated that:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”

50.The Court is of the view that the Appellant\'s right to a fair hearing was violated. Having found as above, and considering the conclusion the court has arrived at, it is not necessary to consider grounds of appeal 1,2,3,4, and 7 on whether the learned Magistrate failed to properly consider the evidence adduced in deciding on the rights to ownership and possession of the suit land.

51.The final orders of the court are as follows;
1)The appeal is allowed.
2)The Trial Court judgment in Kitui Chief Magistrate’s Court ELC No. 18 of 2018 by Hon. S. Mbungi (Chief Magistrate) delivered on 18th November 2022 be and is hereby set aside.
3)The suit is to be remitted to the trial court for the hearing of the Appellant\'s defence to the suit.
4)Each party is to bear their own costs of the appeal and the trial court.
Dated, Signed and Delivered at Kitui this 17th  Day of October 2024

L. G. KIMANI
JUDGE
Judgement read virtually in the presence of
Maingi for the  Appellant
No attendance for the Respondent